FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SOMERS & CHUBB | [2012] FMCAfam 480 |
| FAMILY LAW – Procedural – discharge of Independent Children’s Lawyer. |
| Family Law Act 1975, s.68L |
| W & M & Anor [2006] FamCA 512 Lloyd & Lloyd and Child Representative (2000) FLC 93-045 Knibbs & Knibbs [2009] FamCA 840 |
| Applicant: | MR SOMERS |
| Respondent: | MS CHUBB (FORMERLY SIMMONS) |
| File Number: | SYC 745 of 2009 |
| Judgment of: | Kemp FM |
| Hearing date: | 10 May 2012 |
| Date of Last Submission: | 10 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2012 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
| Counsel for the Respondent: | Mr Barry |
| Solicitors for the Respondent: | Legal Aid Commission of NSW |
ORDERS
The father’s application in a case filed on 28 November 2011, seeking orders that the appointment of Ms Anne Connor as the Independent Children’s Lawyer (“ICL”) be discharged and a new ICL be appointed, be dismissed.
The CCTV footage the subject of Court Exhibit 1 is to be preserved in the form of that exhibit and not to be released to any party without leave of the Court
The matter be adjourned to 1 June 2012 at 9.30am for mention.
IT IS NOTED that publication of this judgment under the pseudonym Somers & Chubb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 745 of 2009
| MR SOMERS |
Applicant
And
| MS CHUBB |
Respondent
REASONS FOR JUDGMENT
Introduction
The Court deals with the father’s Application in a Case, filed on 28 November 2011, seeking orders that the appointment of Ms C as the Independent Children’s Lawyer (“ICL”) be discharged and a new ICL be appointed.
The father filed an Amended Application in a Case on 3 April 2012 which sought the identical orders set out in his earlier application. The father agreed that the amended application should be dismissed and an order was made to that effect.
The ICL opposes the discharge order. The respondent mother also opposes the discharge order.
The applicant father is the respondent in the substantive parenting proceedings commenced by the mother. These proceedings concern the child of the relationship, [X], born [in] 2004, aged 7 years 9 months, (at the date of hearing) (“the child”).
The father relies on his affidavit affirmed on 2 April 2012 and filed on 3 April 2012.
The ICL has not filed any affidavit but relies on a number of tendered documents as follows:
Exhibit No
Document
Date
Tendered by
ICL1
Single Expert Report Professor C Quadrio
29/1/2010
ICL
ICL2
Child and Family Meeting Memorandum of Ms S
5/11/2010
ICL
ICL3
Child and Parents Issues Assessment of Ms S
15/11/2010
ICL
ICL4
Transcript of proceedings before FM Kemp of 16/11/ 2011
ICL
ICL5
Transcript of proceedings before Justice Johnston of 22/11/2011
ICL
ICL6
Family Consultant Memoranda of Ms S dated 13/1/2012 & 16/2/2012
ICL
ICL7
Guidelines for Independent Children’s Lawyers
8/12/2007
ICL
Court 1
Compact disc containing CCTV footage of a number of scenes taken in the Court…
Continue reading Somers and Chubb
Sign in free to access the full text
- AGLC
- Somers and Chubb [2012] FMCAfam 480
- Case
- [2012] FMCAfam 480
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the ICL should be discharged based on largely unsubstantiated complaints by one of the parties. The court had to consider the implications of discharging an ICL, including the potential impact on the children's welfare and the precedent such an action might set for future proceedings. Holden CJ highlighted three main considerations: the best interests of the children, the need to treat allegations of lack of impartiality with caution, and the public policy considerations regarding the expense and resource allocation in appointing a new ICL.
Holden CJ dismissed the father's application to discharge the ICL. The judge found no actual evidence of impartiality issues and stressed that the children had developed a strong relationship with Ms. Connor, which would be detrimental to disrupt. The court also emphasised the importance of treating allegations of bias cautiously to avoid setting a precedent where any party could easily seek to remove a representative based on unfounded perceptions. Furthermore, the judge noted the financial and resource implications for Legal Aid in appointing a new ICL to replace someone who had extensive knowledge of the case.
The court made several orders, including dismissing the father's application, preserving the CCTV footage as Court Exhibit 1 without releasing it to any party without leave of the court, and adjourning the matter to 1 June 2012 for a mention.
Orders
Orders of the court
1.
The father’s application in a case filed on 28 November 2011, seeking orders that the appointment of Ms Anne Connor as the Independent Children’s Lawyer (“ICL”) be discharged and a new ICL be appointed, be dismissed.
2.
The CCTV footage the subject of Court Exhibit 1 is to be preserved in the form of that exhibit and not to be released to any party without leave of the Court
3.
The matter be adjourned to 1 June 2012 at 9.30am for mention.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Holden CJ at paragraph 30 of his decision further states that there are a number of “very good reasons” why the Court should be slow to discharge an ICL on the basis of “largely unsubstantiated complaints of one of the parties”. His Honour records those reasons as including:- “ (i) The best interests of the children have to be borne in mind. Unfortunately these children have been embroiled in the dispute between their parents for a long period of time. For much of that time they have had C as their representative who states that in her belief she has developed a good relationship with the children. That would not be surprising given the period of time that she has been representing them. Given what the children have had to endure to date, by virtue of these proceedings, it does not seem to me to be in their best interests to deprive them of a representative with whom they have built up a good relationship and introduce them to a complete stranger with whom they may or may not develop a similar relationship. In my opinion the Court should not take that step unless there is good reason to do so. No such reason is present in this case. (ii) The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not ``on side'' or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative. [Emphasis added in these reasons](iii) There is also a public policy consideration. To date, as I understand it, the fees of the children's representative have been met by Legal Aid. As I indicated earlier in these reasons for judgment, these parties have been arguing in this Court over their children for a period approaching 6½ years. C has been involved in the proceedings for about 4½ of those years and, no doubt by virtue of that fact, has a thorough knowledge of what has gone on between the parties. Any new solicitor appointed would have to wade through the four volumes of the Court file to acquire the necessary knowledge to adequately represent the children. That, of itself, would involve considerable expense to the Legal Aid Commission, the resources of which are finite. That is not to say that this consideration should prevail where obvious impartiality has been demonstrated to the satisfaction of the Court.”